SG Mehta: Then there is a problem. The problem is- can your lordships read a statute which gives one additional ground of divorce to one class to the detrimental of heterosexuals for whom the Special Marriage Act is enacted?
SG Mehta: The other side said that let both have both grounds for divorce. Like 1A applies only to a wife so who will be a wife in a man-man marriage etc - they said both would have both the grounds.
CJI DY Chandrachud: Correct me if I'm wrong, I think it is compulsory but failure to register doesn't render the marriage void.
Justice Bhat: Under Hindu Marriage Act, it's not compulsory.
SG Mehta refers to the 59th Report of the Law Commission which provided that it was desirable to exclude from the scope of S 21A cases where both parties were Hindus.
"In such cases, the law of succession should continue to apply."
CJI DY Chandrachud: 19 still holds intact the applicability of all other aspects of personal laws.
SG Mehta: Yes, I'm obliged. Therefore, it may not be a choice to not touch other personal laws. It is interwoven.
CJI DY Chandrachud: There is one more thing- 19 provides for severance only in respect of your family status.
SG Mehta: Please see Section 21 where succession act is made applicable across religion but not other personal laws of Muslims, parsis etc.
SG Mehta: Personal law gets re-entry through Section 21.
[SG Mehta reads Section 19]
SG Mehta: 19 says that persons belonging to Hindu, Buddhists, Sikhs, and Jains will renounce- they will not be a part of Hindu family but Muslim, parsi, Christian personal law continue to apply
SG Mehta: Not only will your lordships need to rewrite the act, your lordships will have to recast statutory forms also.
SG Mehta (refers to more provisions concerning prohibited relationships) : The act is not gender neutral.